In eleven years of blogging, I've only once received a serious threat of legal action for something posted here--serious, not in the sense that the claim had any merit, but in that the person making the claim had a real lawyer and there was a real prospect of a nuisance lawsuit being filed. The case involved jeweler and self-styled metaphysician David Birnbaum, whose curious case we noted last year, and whose story was then picked up by CHE. The trouble did not start, however, until almost six months later when The Guardian contacted Mr. Birnbaum for a story they subsequently ran about him. From that reporter Mr. Birnbaum discovered my original post about the allegations of academic identity theft from Prof. Hagberg. This posting agitated him, so he phoned me up at the office.
The conversation didn't get off to a good start because within the first twenty seconds he used the word "defamatory"; I cut him off and said to him, "If you call up a law professor and start throwing around the word defamatory, then the conversation is over." This sobered him up and we had a pleasant chat and he assured me the whole matter with Prof. Hagberg was a misunderstanding, that he had documents to prove it, that my post was very upsetting to his children, etc. It was an odd ramble. I said to him if he could send me documents proving it was a misunderstanding, then I would revise or remove the post accordingly. I told him to e-mail me the evidence.
Mr. Birnbaum didn't, in fact, have any real evidence, but he did e-mail me. He also cc'd his lawyer, which meant our correspondence was at an end. This was a litigator with a major New York law firm; my best guess is that this lawyer represents Mr. Birnbaum in disputes involving his high-end jewelry business, where there is probably hundreds of thousands (or millions) of dollars at stake. But I think as part of the cost of keeping his client, he also has to handle Mr. Birnbaum's vanity litigations (Birnbaum apparently made similar threats against Bard College as well, though in the end did nothing).
Fortunately, I have the best lawyer in the United States (truly!), a friend I went to law school with years ago. It's not just that he's really smart and a person of extraordinary integrity, it's that he has impeccable and shrewd judgment, and knows how to handle people--a huge part of successful lawyering is understanding how to get people to do what the law requires without actually having to bring suit (though bringing suit is, of course, the final recourse for certain wrongs). Over the years, my lawyer has recovered bonuses and security deposits wrongfully withheld, secured revisions to factually inaccurate statements in a book put out by a major publishing house, and assisted me in dealing effectively with sundry cyber-crazies. In none of these cases was a lawsuit ever filed (though in one, as I recall, a draft of the complaint did motivate the miscreant to do the right thing).
In any case, my lawyer and one of his colleagues, a defamation expert, had a couple of conversations with Mr. Birnbaum's lawyer; they explained why Birnbaum had no claim (this wasn't a close case for a variety of reasons); predictable and ominous warnings were issued by Mr. Birnbaum's lawyer; and Mr. Birnbaum and his lawyer were never heard from again. (The statute of limitations has now run, which is why I am writing about this now.) If the nuisance suit had been filed, we would have sought and presumably gotten sanctions against Mr. Birnbaum from the court.
But that whole affair made me wonder: why so few legal threats over the years, given the high visbility of this blog? There are a few reasons, I think. First, I don't publish actionable material, because I have an informed sense of the legal parameters--in the U.S. those parameters are less friendly to victims, in the U.K. more so, but U.K. libel judgments are only enforceable against U.S. citizens if they sanction what would also be defamatory under U.S. law. Still, I've never had a threat from any U.K. party either, and that's because I don't push the limits, by U.S. or U.K. legal standards--one can deliver "merciless rhetorical spankings of fanatics, villians, and ignoramuses"--including an occasional philosopher--without defaming anyone or portraying anyone in a false light. (Some other blog proprietors are not so careful, and at least one philosophy-related blog I'm aware of may be on the receiving end of serious legal trouble; I'll post about that if and when it happens.) Second, those who might want to make legal threats know they're dealing with a philosopher who is also a lawyer, and some presumably also know that I have a lawyer. I get idle e-mailed threats every now and then; I mostly just ignore them or tell the sender quite plainly that they're full of it.
No one likes to be on the receiving end of a threat of legal action, and I certainly wasn't happy about Mr. Birnbaum's threats, but I also wasn't going to accede to them. But law really does provide the invisible infrastructure that makes our lives possible--for it is law that protects our rights to receive what we were contractually promised, to enjoy privacy and peace, to be free of assault (sexual or otherwise), and to have our reputations unsullied by false or misleading allegations. I suspect Mr. Birnbaum's threat will not be the last meritless one I receive; I also suspect that, as cyberspace becomes more central to not only our profession, but others, that more and more meritorious legal threats will become common. The move to create legal remedies (some civil, some criminal) for "revenge porn" and other forms of cyber-harassment is one prominent example of the law's expansion into cyberspace (this book is informative on the subject). But the traditional legal protections one enjoys in a society like the U.S. that also apply in cyberspace will also, I expect, be increasingly enforced through legal actions--or credible, rather than idle, threats of such actions.
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